This Article discusses the relative value of law and economics and moral philosophy to explain private law in both common law and civil law jurisdictions. It argues that the recent philosophical paradigm, which revolves around the ideas of fairness and autonomy, is intellectually continuous with the School of Rationalist Natural Law. Though this School has been directly influential on the development of civilian private law, its ascendancy on common law cannot be documented. Paradoxically, recent philosophical explanations of private law bear on common law, while legal philosophers in civil law jurisdictions still follow Kelsen's research agenda, which focuses on the structural properties of law.
The Article seeks to show that the relative importance of law and economics and moral philosophy to explain private law varies depending on the jurisdiction. In civil law jurisdictions, moral philosophy is more important because civilian institutions, such as contracts and torts, have been shaped by the ideas of autonomy and fairness. In common contract and tort law, however, those moral ideas have been relegated to a peripheral position. The Article provides illustrative examples and emphasizes that law and economics is also necessary to explain many features of civil law.
Fairness and Welfare from a Comparative Law Perspective,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol79/iss2/10